Cryan v Dutta

[2024] NSWLEC 1287

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cryan v Dutta [2024] NSWLEC 1287

Hearing dates:

21 May 2024

Date of orders:

21 May 2024

Decision date:

21 May 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   Snigdha Dutta is added as the second respondent to these proceedings.

(2)   The application is upheld to the extent of the following orders.

(3)   Every 6 months, in June and December of each year, beginning June 2024, the respondents are to engage and pay for a suitably experienced gardener or arborist to prune the Murraya hedge along the northern section of the common boundary they share with the applicant, so that no parts of the trees extend across the common boundary.

(4)   If the works in order (3) are not completed by the end of each June and December, the applicant may engage and pay for a suitably experienced gardener or arborist to prune the Murraya hedge as per order (3) by the end of the following month (July or January).

(5)   If the applicant engages a contractor as per order (4), the applicant is to provide the respondents with a copy of the paid invoice within 30 days of the works being completed.

(6)   If the respondents receive a copy of a paid invoice as per order (5), within 14 days of its receipt they are to pay the applicant the invoice amount.

(7)   Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works:

(a)   prune the camellia (Tree 1) to remove branches that extend across the boundary and are within 600 mm of the applicant’s garage roof gutter;

(b)   remove dead fronds from the Cocos palm (Tree 2); and

(c)   carry out an aerial assessment of the cypress tree (Tree 3) and remove any branches identified as hazardous.

(8)   The works in order (7) must be carried out in accordance with AS4373-2007 Pruning of amenity trees and the Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016.

(9)   The respondents must give the applicant at least 7 days’ notice of the works in order (7) and each occurrence of the works in order (3).

(10)   The applicant is to allow access to his property for the works in orders (3) and (7) during reasonable hours of the day.

(11)   The exhibits are retained.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring trees – damage to property – risk of injury – nuisance – who is responsible for pruning trees – orders for tree pruning

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 5, 6, 7, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Texts Cited:

Australian Standard, AS4373-2007 Pruning of amenity trees, 2007

Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016

Category:

Principal judgment

Parties:

Kevin Cryan (Applicant)
Sid Dutta (First Respondent)
Snigdha Dutta (Second Respondent)

Representation:

Counsel:
K Cryan (Self-represented) (Applicant)
S Dutta (Self-represented) (First Respondent)
S Dutta (Self-represented) (Second Respondent)
G Stewart (Agent) (First and Second Respondents)

File Number(s):

2024/104263

Publication restriction:

No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. COMMISSIONER: Sid and Snigdha Dutta (together, the respondents) purchased their East Lindfield property in 2012. Their neighbour, Kevin Cryan (the applicant) has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the Duttas to maintain trees on their property. The orders he seeks are (copied here verbatim from his application):

1. Large Murraya Panniculata hedge 13M Length, 5M Height, located 45cm from property boundary and blocking access to driveway. An order as per S9 of the Act requiring the taking of a specific remedy - ongoing pruning and maintenance of hedge to allow car access into driveway at 81 Tryon Road.

2. Large Sasanqua Camellia, 4.5M Height, planted 35cm from property boundary and requiring yearly pruning to keep leaves and flowers out of gutter of garage. Guttering of garage replaced @ 2016 due to weight of debris in gutter forcing the gutter to collapse during heavy rain. An order as per S9 of the Act is sought requiring the taking of a specific remedy - ongoing pruning of Sasanqua Camellia to prevent damage to gutter.

3. Large Cocos Palm, @30M Height, planted 60cm from property boundary which produce large fronds and seed pods which weigh up to 25 kilos and which regularly fall into the backyard of 81 Tryon Road which poses a danger and the requirement to clean up. The Cocos Palm is also considered a noxious weed by most NSW Councils. An order as per S9 of the Act is sought requiring the taking of a specific remedy - ongoing pruning of Cocos Palm to prevent the danger of falling palm fronds and seed pods.

4. A very large Pine Tree, @35M in height, planted so that the trunk is less than 20cm from the boundary line, and with a canopy that commences less than 10M from the ground and which extends 6M deep, and 8M in width over my property and which drops huge amounts of tree debris into my pool requiring cleaning several times a week to keep the pool operating equipment functional. An order as per S9 of the Act is sought requiring the taking of a specific remedy - pruning of the Pine Tree back to the boundary line and ongoing maintenance of the tree.

2. The Duttas say all these trees were well established on their property when they purchased it. They have told Mr Cryan that he is welcome to maintain the trees where they cross the boundary.

3. The hearing took place onsite, allowing the Court to view the trees and both properties. The parties were self-represented; the Duttas were also assisted by their property agent Graham Stewart. No expert reports have been provided to the Court. I bring my own arboricultural expertise and experience to this decision.

Update to participants

4. Ms Dutta was not listed as a respondent on the application. She attended the hearing and stated that she is a joint owner of their property. Any orders made might affect all property owners, so the first order will add Ms Dutta as the second respondent.

Framework for this decision

5. The key jurisdictional issues to be determined in these proceedings are found at s 10 of the Trees Act:

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b) is likely to cause injury to any person.

Reasonable effort

6. Mr Cryan first wrote to an agent handling the respondents’ property in 2012, although the Duttas say they never received that correspondence. Mr Cryan emailed the Duttas in 2023, raising the issues now captured in his application. The Duttas say their agent then gave Mr Cryan permission to prune overhanging trees as he needed. I am satisfied that Mr Cryan made a reasonable effort to reach agreement and that the required timeframe for notice has passed between the application’s filing date and the time of the hearing.

The trees and damage or injury

The Murraya hedge (the hedge)

7. A hedge of 12 or 13 Murraya paniculata trees extends along the common boundary for approximately 13 metres from the Tryon Road frontage. Mr Stewart questioned whether the trees are on the Duttas’ property or are planted on the boundary. After observing the location of the Duttas’ water meter and the paling boundary fence along the common boundary further to the south, I determined that the trees are located on the Duttas’ property. The trees are up to 5 metres tall. Their dense network of branches and foliage extends across the boundary to Mr Cryan’s driveway, which is adjacent to the common boundary. Mr Cryan said the previous owners of the Duttas’ property maintained these trees, including his side of the hedge, but for the last 12 years he has had to prune the trees to maintain clear vehicle access along his driveway. He says this task is now becoming too onerous. He wants the Duttas to maintain the hedge. The Duttas submit that the trees were already there when they came here and it is the responsibility of each neighbour to maintain their own side.

8. While neighbours have the common law right to prune overhanging branches to the common boundary, where trees cause a nuisance that nuisance may be dealt with by a court. If the situation falls within the jurisdiction of the Trees Act, that replaces other avenues of dealing with the nuisance (s 5 of the Trees Act). Here, Mr Cryan’s car will be scratched by tree branches in the near future if those branches are not maintained, satisfying the test at s 10(2)(a) of the Trees Act. The Court can make orders. Having considered the matters at s 12 of the Trees Act, I find it would be both appropriate and reasonable to make orders for the Duttas to maintain the hedge by pruning it to the common boundary. The Duttas have been aware of the nuisance caused by the trees since 2023 – although they did not create it, they are now continuing it. Orders to be made for this will also allow for Mr Cryan to engage contractors to undertake the work if it is not completed by the Duttas, with the Duttas to pay him for the cost of the works.

The camellia (Tree 1)

9. The camellia (Camellia sasanqua) next to Mr Cryan’s garage grows over the garage roof and drops debris into the gutter. Mr Cryan tries to maintain the gutter, but had to replace it some years ago as a result of damage caused by debris build-up. If I accept that the camellia’s leaves and flowers fell into the gutter and caused damage, I would not make any orders on this basis. Rather, I rely on the long-standing principle established in Barker v Kyriakides [2007] NSWLEC 292: that property owners can reasonably be expected to carry out property maintenance such as cleaning out roof gutters, including the removal of debris from neighbouring trees. Nevertheless, I find that some branches that are almost hitting the gutter are likely to cause it some damage in the near future. An order will be made to remove those branches but, given the low level of risk, I will not order ongoing maintenance. The Duttas are now aware of the issue.

The Cocos palm (Tree 2)

10. The Cocos palm (Syagrus romanzoffiana) in the Duttas’ back garden is around 16 metres tall, planted close to the common boundary. Many of its fronds, including several dead fronds at the time of the hearing, overhang Mr Cryan’s back yard and are likely to fall onto his clothesline or lawn area in the near future. They are heavy enough to damage the clothesline or injure a person. An order will be made to remove dead fronds. No order will be made for ongoing maintenance, as the Duttas are now aware of the issue and its remedy. Should the current likelihood of damage recur in future and the matter returns to Court, the Court would consider the actions of the parties when determining the nature of any further orders.

The cypress (Tree 3)

11. Growing next to the Cocos palm, the cypress (× Hesperotropsis leylandii ‘Leighton Green’) tree’s branches overhang Mr Cryan’s back yard. Foliage falls into his pool; the tree’s shade and allelopathic effects limit growth of his own garden plants. I do not find this reason enough to order pruning of the tree. Damage to the pool filter can be prevented by maintenance; ‘damage’ might not reach to difficulty growing plants, but even if it did, competition between plants is part of the ups-and-downs of gardening. Mr Cryan seeks an order for the tree to be pruned back to the common boundary, but this would remove so much of the tree’s crown that the tree would no longer be viable and would need to be removed entirely. From ground-based observations, it is difficult to determine the structural integrity of all overhanging branches and their attachment points. An order will therefore be made for an arborist to climb the tree to conduct an aerial assessment and to remove any branches found to be hazardous. Again, now that the Duttas are aware of this issue and its remedy, it will be left to them to manage ongoing maintenance.

Relevant matters

12. For each tree above, I have considered the relevant matters at s 12 when determining the nature of the orders below. Before making these orders, I note for the respondents’ information that s 6(3) of the Trees Act negates the need for any council consent otherwise required for the works ordered below. Further tree pruning or removal works may require council consent. Should any of the subject trees be removed, naturally any orders relating those trees become redundant.

Orders

13. The Court orders:

1. Snigdha Dutta is added as the second respondent to these proceedings.

2. The application is upheld to the extent of the following orders.

3. Every 6 months, in June and December of each year, beginning June 2024, the respondents are to engage and pay for a suitably experienced gardener or arborist to prune the Murraya hedge along the northern section of the common boundary they share with the applicant, so that no parts of the trees extend across the common boundary.

4. If the works in order (3) are not completed by the end of each June and December, the applicant may engage and pay for a suitably experienced gardener or arborist to prune the Murraya hedge as per order (3) by the end of the following month (July or January).

5. If the applicant engages a contractor as per order (4), the applicant is to provide the respondents with a copy of the paid invoice within 30 days of the works being completed.

6. If the respondents receive a copy of a paid invoice as per order (5), within 14 days of its receipt they are to pay the applicant the invoice amount.

7. Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works:

1. prune the camellia (Tree 1) to remove branches that extend across the boundary and are within 600 mm of the applicant’s garage roof gutter;

2. remove dead fronds from the Cocos palm (Tree 2); and

3. carry out an aerial assessment of the cypress tree (Tree 3) and remove any branches identified as hazardous.

8. The works in order (7) must be carried out in accordance with AS4373-2007 Pruning of amenity trees and the Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016.

9. The respondents must give the applicant at least 7 days’ notice of the works in order (7) and each occurrence of the works in order (3).

10. The applicant is to allow access to his property for the works in orders (3) and (7) during reasonable hours of the day.

11. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 29 May 2024